Rethinking the Prioritisation of the Criminal Law in Feminists’ Anti-Sexual Violence Work

The 6th North East Conference on Sexual Violence took place on Monday 19th November. It is an annual conference in recognition of the International Day for the Elimination of Violence Against Women which is on the 25th November. Attended by scholars, feminist activists, and those who work with organisations or institutions that address sexual violence, it promises lively, informative and interesting discussions surrounding sexual violence which it did not fail to deliver. This year, the conference centred on Liz Kelly’s concept of the ‘continuum of violence’, 25 years after the first edition of her book Surviving Sexual Violence was published. The presentations and main discussions of the day will not be outlined in this post as this information is available here; rather, I want to pick up and follow up on a couple of points and questions that were raised. How much reliance should feminists place on the criminal justice system to respond to sexual violence? Or how much of feminists’ work and effort should go towards improving the criminal justice system?

Improving the criminal law and criminal justice system has been a primary target of many feminists aiming to achieve justice for victim-survivors of sexual violence since its nature and extent began to be revealed in the 1970s. This has been for good reasons. Criminalising conduct signifies that it is wrongful and harmful, and the definition of a particular crime specifies what it is that is wrong and harmful about that specific behaviour or conduct. In addition, the criminal law is one of the most highly and overtly coercive uses of state power, which censures wrongful behaviour through the punishment of offenders. In short, it is the symbolic power of the criminal law that has been, and still is, particularly appealing to feminists. There have always been challenges to this position from feminists who are critical of reliance on or acting within state apparatus to the extent that they advocate disengagement with it, and from those who are distrustful of law and legal institutions in particular. However, in general the criminal law and criminal justice system have been at the centre of much active, practical and theoretical feminist work.

As was highlighted in the conference, there have been many gains in relation to legal and social responses to sexual violence as a result of feminism. For example, rape crisis centres and other services have been created and developed, knowledge and understandings of sexual violence have changed – for example, rape is no longer commonly understood in terms of women’s body as property but it is seen as a violation of women’s sexual autonomy – and laws have been amended – for instance, rape within marriage has been criminalised. And yet, despite 40 years of feminist campaigning and significant legal changes, in practice the criminal law and justice system fails to adequately address sexual violence (as indicated by the commonly-cited 6 per cent conviction rate for rape) which remains prevalent in society.

There are many challenges and difficulties with focusing so intently on the criminal law and criminal justice system, which contribute to inhibiting progress. A few that were discussed at the conference will be outlined here. One point relates to the law’s demands for clear categorisations, definitions, isolated incidents of wrongdoing and hierarchies of seriousness of wrongdoing which may contrast with women’s lived experiences, descriptions and understandings of sexual violence (see this highlighted in particular in Fiona Elvin’s presentation from the conference). Another (related) point is about the limitations of the law to address women’s ‘everyday’ experiences of sexual violence, such as sexual harassment and institutional sexism, which are often not recognised as harmful or problematic. Moreover, as was illustrated at the conference, such ‘everyday’ violence contributes to giving meaning to and giving rise to other forms of sexual violence, such as rape and sexual abuse. (See Liz Kelly’s presentation slides.) Indeed, a recent example of the ‘continuum of violence’ is the sexism and violence within institutions and organisations which form the context to the sexual abuse perpetrated by Jimmy Savile (see commentary here and here). In addition, the criminal justice system continues to fail to provide justice to victim-survivors of sexual violence, as the majority of perpetrators are not held responsible, and victim-survivors are often further victimised and harmed in a system which marginalises their needs and interests.

None of these points are ‘new’; however, it does seem that many feminists are becoming increasingly disheartened with the possibilities of the criminal law to respond to sexual violence and to provide justice for victim-survivors. While feminists do typically look beyond the law to methods of preventing sexual violence and providing other forms of services to sexual violence victim-survivors, the question is raised as to where that leaves criminal justice, and feminists’ engagement with the criminal justice system.

While the criminal justice system should remain a target for improvement and a key response to sexual violence (for many reasons which include those indicated earlier in this post), it may be time to think beyond traditional forms of criminal justice and to additional and alternative legal responses which may provide justice for victim-survivors. Such an approach was highlighted at the 5th North East Conference on Sexual Violence in November 2011 (see for example, Clare McGlynn’s presentation on restorative justice and sexual violence; and earlier post on this blog). A means to pursue this path may be to explore what constitutes justice from the perspective of victim-survivors. Rather than starting from the point of established forms of justice (such as criminal justice) and investigating the possibilities and limitations in the context of sexual violence, asking victim-survivors what justice may mean could provide insights and ideas for new directions and possibilities for legal (and other) responses to sexual violence.